Mikitasov v Collins HC Whangarei CIV-2008-488-000053

[2010] NZHC 2395

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2008-488-000053

BETWEEN  IGOR ALEXANDROVICH MIKITASOV Applicant

ANDBERNARD JOHN COLLINS First Respondent

ANDSEAN MICHAEL COLLINS Second Respondent

ANDANGELINA GABRIELLA FLEGO Third Respondent

Judgment:      16 December 2010 11:00:00

JUDGMENT OF COURTNEY J AS TO COSTS

This judgment was delivered by Justice Courtney on 16 December 2010 at 11:00 am

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date……………………….

Solicitors:           Carson Fox Legal, P O Box 37403, Auckland 1151

Fax: [phone]

Counsel:             A Fisher, P O Box 1752, Shortland Street, Auckland

Fax: [phone]

Copy to:             A Mikitasov - [email protected]

MIKITASOV V COLLINS HC WHA CIV-2008-488-000053 16 December 2010

[1]      In my judgment 11 August 2010 I made a declaration that Sean Collins had acted in contempt of the Court orders and made an order that he pay indemnity costs in respect of the application.  However, I dismissed Mr Mikitasov’s application for declarations that Bernard Collins and Angelina Flego had acted in contempt of court orders relating to the disposal of assets.  Ms Flego seeks costs on that application.

Costs award against Sean Collins

[2]      Mr Mikitasov has provided copies of relevant invoices to support the claim for indemnity costs.  They show that he has incurred legal fees of $55,934.42 (GST inclusive).  There will be an order for that amount.   Mr Mikitasov also seeks reimbursement of the costs of private investigators.   However, the two invoices relate to Bernard Collins and cannot be included in a costs award relating to Sean Collins.

Costs against Mr Mikitasov

[3]      Ms Flego seeks costs from Mr Mikitasov following her successful opposition to the contempt application.  She seeks increased costs of $9,870 (calculated at at 50 percent uplift on scale costs of $6,580).    She seeks these costs on the basis that she was put to considerable expense in defending the application, co-operated with Mr Mikitasov   by   answering   repetitive   and   sometimes   oppressive   requests   for information and that although she provided extensive information Mr Mikitasov wrongly pursued her, exacerbating her personal situation, including her ill-health.

[4]      Mr Mikitasov has responded by asserting that Ms Flego was not, in fact, fully co-operative and only provided key documents close to the hearing, that the application was brought in good faith and had a good basis.  Further, he points out that Ms Flego did breach most of the Court orders that were issued.

[5]      As a general principle, costs ought to follow the event.  Increased costs such as those sought by Ms Flego may be ordered under R 14.6(3) High Court Rules if the party opposing the costs has contributed unnecessarily to the time or expense of the

proceeding by, amongst other things, pursuing an unnecessary step or an argument that lacks merit.

[6]      I consider that Ms Flego is entitled to costs but do not consider that the circumstances justify an award of increased costs.   The fact is that Ms Flego did breach court orders and did not mention relevant information when she should have. I have found that she was not in contempt and should be entitled to scale costs. However, it could not be said that Mr Mikitasov’s application was without merit. There will therefore be an order for costs in favour of Ms Flego.

[7]      In  relation  to  the  calculation,  I  note  Mr Mikitasov’s  challenge  to  the calculation contained in Ms Fisher’s memorandum.  These have merit.  First, a daily rate has been taken at $1,180 for all items whereas that rate should have been $1,600 prior to 24 May 2010.  Secondly, Mr Mikitasov notes that a telephone conference on

18 February 2010 for which .4 of a day has been claimed only took a few minutes and was not, in fact, a case management conference.  Thirdly, Mr Mikitasov points out that the memorandum 9 March 2010, for which .2 of a day has been claimed, was actually prepared by his solicitor. Taking all of these factors into account I make

an order for costs in favour of Ms Flego of $5,200.

P Courtney J